Church-State Watchdog Group Says Davis Should Either Do Her Job Or Find A New One

Rowan County, Ky., Clerk Kim Davis must issue valid marriage licenses to all qualified couples, including those of the same sex, says Americans United for Separation of Church and State.

In a friend-of-the-court brief filed yesterday evening with the 6th U.S. Circuit Court of Appeals, Americans United said Davis' religious beliefs do not trump the U.S. Supreme Court's marriage-equality decision in Obergefell v. Hodges, nor does she have the right to prohibit Rowan County from issuing marriage licenses to anyone.

"The First Amendment is not the personal plaything of Kim Davis or any other government official," said the Rev. Barry W. Lynn, executive director of Americans United. "No official has the right to deny constitutional rights to others simply on the basis of their own religious beliefs."

After the Obergefell ruling, Davis refused to issue marriage licenses to anyone because of her opposition to marriage equality. She also stopped the Rowan County deputy clerks from issuing licenses, a decision that violated a court order and landed her in jail in September.

Rowan County deputy clerks began issuing licenses to all couples while Davis was in jail, but after her release she altered Rowan County's marriage licenses to remove any mention of Rowan County, the name or title of any clerk or deputy clerk and even the signature of the official issuing the license. Kentucky law requires an issuing clerk's name to appear on these licenses, so it remains unclear if the documents are valid.

Davis claims that her religious beliefs permit her to withhold marriage licenses from same-sex couples, but so far federal courts have not supported her position.

In its brief, Americans United argued that Davis has no right to deny marriage licenses to Kentucky citizens.

"Davis could not give her church or her pastor the right to block Rowan County from issuing marriage licenses to eligible couples," the brief reads. "Nor, therefore, may she arrogate to herself the right to stop the County from issuing those licenses."

Kentucky's new governor, Matt Bevin, issued an executive order earlier this week directing the removal of the county clerk's name from Kentucky marriage licenses. The brief notes that this order itself appears to violate Kentucky law, and that Davis' unilateral decision to change the licenses would, if allowed, spawn chaos in Kentucky and undermine citizens' marriage rights..

"Each time a county clerk asserted a religious objection to the operative marriage license, the legislature would need to agree on and authorize a different form; the executive would need to design and distribute that new form; and, most importantly, the marrying couple would be unable to get a license unless and until both branches completed these tasks," asserts the brief.

Observed AU Senior Litigation Counsel Gregory M. Lipper, "Because we don't live in a theocracy, Kim Davis must comply with the Constitution and stop imposing her religious beliefs on the citizens of Rowan County. Davis may marry or not marry whomever she likes, but her religious objections to marriage equality do not allow her to block the lawful marriages of others."

The brief for Miller v. Davis was prepared by Lipper, AU Legal Director Richard B. Katskee and Madison Fellow Natacha Lam. (Lam is admitted in New York only and is supervised by Katskee, a member of the D.C. Bar.)